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Kerala High Court
M/S.Mam Timber & Plywood (P) Ltd vs Commercial Tax Officer on 3 August, 2010




WP(C).No. 20458 of 2010(F)

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.N.MURALEEDHARAN NAIR

                For Respondent  :GOVERNMENT PLEADER


 Dated :03/08/2010

 O R D E R
                 P.R.RAMACHANDRA MENON, J
                    WP(C) NO. 20458 OF 2010
             Dated this the 3rd day of August, 2010


The petitioner is before this Court mainly challenging Ext.P6

modified order passed by the assessing officer in respect of the

assessment year 2001-02. The sequence of events as described in the

Writ Petition shows that, in respect of the assessment year 2001-02, the

assessment was finalised as early as on 17.03.2005, which was subjected

to challenge by filing appeal, leading to the order dated 07.12.2006

passed by the appellate authority (which has been produced by the

petitioner himself as Ext.P7 along with reply affidavit) as per Ext.P7.

Assessing authority was directed to modify the assessment as specified,

pursuant to which a modified order was passed by the assessing officer,

i.e., the respondent on 27.2.2008. Stating that there were some errors on

the face of the records, the petitioner filed an application under Section 43

for rectifying the said errors, which was pending before the respondent.

However, contending that Ext.P7 order passed by the appellate authority

itself was wrong, the same was subjected to challenge by filing further

appeal before the Tribunal, which is stated as dismissed on 19.11.2007.

2. When the application for rectification filed by the petitioner

was pending, the respondent observed that the earlier modified order

WP(C) No. 20458/2010

passed on 27.02.2008 was not fully in conformity with the mandate given

by the appellate authority in Ext.P7, especially with regard to the figures in

respect of the labour charges. Accordingly, taking a bonafide approach, the

respondent issued a notice to the petitioner pointing out the above vital fact

and inviting objections, if any, when the petitioner submitted Ext.P3

communication dated 04.11.2008, asking more time to file the statement of

objections. The learned counsel submits that, along with Ext.P3, the

petitioner also produced the relevant documents, however seeking for a

further opportunity of hearing, if the objection raised was not acceptable to

the authority. The learned counsel for the petitioner submits that the

petitioner, in fact, had also filed an appeal against the earlier modified

order dated 27.02.2008 by STA 6357/2005, which culminated in Ext.P1

order on 17.10.2008, whereby the assessing authority was directed to

reckon the element of labour charges and to pass appropriate orders on

the basis of the relevant records, holding that the appeal itself was in

nature of a rectification petition and hence that the merits were not

considered. The learned counsel further submits that, inspite of submitting

Ext.P5 statement of objections in detail, the proceedings were finalised by

the respondent by passing Ext.P6, which hence is sought to be challenged

stating that it is not in conformity with the appellate order passed by the

concerned authority.

WP(C) No. 20458/2010

3. The learned Government Pleader, with reference to the

statement filed before this Court submits that, Ext.P5 statement of

objection was never preferred by the petitioner and absolutely no proof has

been produced even before this Court to sustain the said contention. This

is strongly rebutted by the learned counsel for the petitioner pointing out

that, Ext.P5 objection was submitted in the office of the respondent; the

receipt of which has been endorsed thereon, as shown in the ‘face page’ of

Ext.P5 itself. The learned counsel further submits that, but for making a

vague statement from the part of the respondent that Ext.P5 has not been

received, absolutely no averment is there in the statement filed, that the

endorsement made on Ext.P5 as to its receipt is wrong. This Court finds

considerable force in the said submission. The missing of Ext.P5, as the

case may be can only be after its receipt, in view of the endorsement. As

such, this Court finds that the matter requires to be re-considered, also

taking note of the contents of Ext.P5, as now produced along with the Writ

Petition. Accordingly, Ext.P6 order passed by the respondent without

considering Ext.P5 is set aside and the respondent is directed to treat

Ext.P5 (which has now been produced along with Writ Petition) as proper

objection and to pass final orders thereon, in conformity with the directions

given by the appellate authority; of course after giving an opportunity of

hearing to the petitioner, as expeditiously as possible, at any rate, within

WP(C) No. 20458/2010

one month from the date of receipt of a copy of this judgment. The

petitioner shall produce a copy of the judgment along with the copy of the

Writ Petition before the respondent for taking further steps forthwith.

The Writ Petition is disposed of accordingly.


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